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A Few States Spawn Most Complaints on Special Education, Says Study

The number of special education due process complaints decided by hearing officers has dipped between the 2006-07 and the 2011-12 school years— a decline almost solely attributable to a drop in adjudicated hearings in the District of Columbia, according to a recently-published analysis by Perry A. Zirkel, a professor of education at Lehigh University in Bethlehem, Pa., and an expert in special education law and policy.

The analysis was published in West's Education Law Reporter. (Full citation, West's Education Law Reporter, v. 302, pp. 1-11.) In the paper, Zirkel examines not only the decisions that resulted in a written decision— the so-called "adjudicated hearings"—but the number of filings themselves, which are often resolved or withdrawn before the case ever gets to a hearing officer.

In 2011-12, the most recent year for which figures are available from the U.S. Department of Education based on reports from each state and jurisdiction, the number of complaints decided by hearing officers in the U.S. and outlying areas was 2,262, compared to 4,537 in 2006-07.   

Special education litigiousness under the Individuals with Disabilities Education Act has been seen as a national issue (for example, the American Association of School Administrators recently released a report suggesting a major revamp of the due process system). For most states, however, due process filings, much less full-fledged hearings with written decisions, are quite rare, according to the analysis Zirkel made of data collected by the office of special education programs. 

Six jurisdictions—California, the District of Columbia, New Jersey, New York, Pennsylvania, and Puerto Rico—account for 80 percent of the due process complaints that were filed over the six-year period, and 90 percent of the complaints that were adjudicated, Zirkel found.

(A note about Puerto Rico: Though the numbers are correctly reported from the U.S. Department of Education, Zirkel's analysis notes that Puerto Rico has produced a "negligible level of IDEA court decisions," which is contrary to what one would expect in a jurisdiction with such a large number of due process hearings and written decisions. However, the numbers were confirmed to be correct by an official with the Puerto Rico Department of Education, he wrote.) 

In response to the concern about special education lawsuits, Congress responded by adding several provisions to the IDEA that promote mediation or other resolution activities before a due process hearing is held. And in 2011-12, 17,118 due process complaints were filed, compared to 18,358 in 2006-07, Zirkel's research found.

The analysis also showed that far fewer of those complaints are progressing all the way to full-fledged hearings, as shown in this graphic of the jurisdictions that make up the lion's share of due process complaints and hearings: 

 

The District of Columbia has made a special effort to improve its special education system, which could be driving the decrease in complaints heard by hearing officers, Zirkel notes. 

Zirkel's analysis mirrors findings he made in a paper that looked at due process complaints filed between 1991 and 2005. Other analyses show similar results—even in states that have a lot of complaints filed, the disputes rarely go all the way to a hearing.

"For the public and policymakers, the 'parade of horribles' of overlegalization of special education is much too big a generalization," Zirkel said in an interview. "For the vast part of the country, it's really a negligible phenomenon."

 

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